11-29-2018
The U.S. Department of Education (DOE) has proposed extensive new guidelines for entities responsible for adhering to Title IX. These new regulations are a replacement for the Obama-era regulations previously rescinded and for the interim guidelines put into place in September 2017. According to the DOE, these new guidelines will decrease the amount of investigations that schools of higher education must conduct into complaints of sexual misconduct and save these institutions an estimated $286 million to $368 million over the next decade.The proposed regulations are extensive and should be reviewed carefully. Among the biggest changes are the following: A new rule that institutions would only be responsible for investigating claims that occurred within programs sanctioned by the school. Moreover, schools must have “actual knowledge” of the misconduct. This “actual knowledge” is defined by a formal complaint made to proper officials designated on campus. Under the Obama-era rules, misconduct that came to the attention of any employee was sufficient to create knowledge. Institutions may also decide for themselves the proper evidentiary standard for findings of misconduct i.e., either “preponderance of the evidence” or “clear and convincing evidence,” provided the standard is the same as used in other student disciplinary matters. If the parties agree, informal resolution processes such as mediation are available.
One of the most controversial provisions allows for cross-examination. While no interaction between the parties will be allowed, it does permit the accuser to be questioned about the allegations in a live hearing by a lawyer or other advisor. The definition of sexual harassment will also be narrower, so instead of “unwelcome conduct of a sexual nature,” it will be “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The public has sixty days to comment on the regulations before they go into effect.